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In February 1999, this Court issued an opinion
regarding defendant Mason-Dixon Lines, Incorporated’s appeal
by leave granted from a circuit court order that affirmed a
district court final judgment in favor of plaintiffs. The
plaintiffs had alleged that defendant damaged a printing press
purchased by Estate Design & Forms, Inc. during
defendant’s transportation of the press from Texas to
Michigan. The jury found for plaintiffs, and the district court
entered for them an $85,835.88 judgment, which the circuit court
affirmed. This Court’s February 1999 opinion reversed the
judgment and remanded for a new trial on the basis that the
district court failed to apply preemptive federal law regarding
interstate common carrier liability.[1]

Plaintiffs applied to the Supreme Court for
leave to appeal our decision concerning preemption, and defendant
applied for leave to cross appeal our finding that a release
obtained by Meridian Mutual Insurance Company, Estate
Design’s insurer and subrogee, from Estate Design did not
preclude plaintiffs’ instant claims against defendant. The
Supreme Court denied plaintiffs’ application for leave to
appeal, and "in lieu of granting [defendant] leave to
appeal," remanded to this Court for reconsideration of the
release issue in light of Romska v Opper, 234 Mich App
512; 594 NW2d 853, leave denied 461 Mich 922; 606 NW2d 23 (1999),
which was issued approximately 1½ months after our initial
opinion in the instant case. In light of our further analysis
with respect to the release, the holding in Romska, and
the order of the Supreme Court, we reverse the district and
circuit courts’ denials of defendant’s motion for
summary disposition premised on the release.

We first address plaintiffs’ contention
that defendant waived its right to assert that a release barred
plaintiffs’ instant claims because defendant failed to raise
this affirmative defense either prior to or within its answer to
plaintiffs’ complaint. A party generally must raise the
affirmative defense of release in his first responsive pleading,
or be deemed to have waived the defense. MCR 2.111(F)(3) and
2.116(D)(2). While defendant failed to assert the existence of a
release within its first responsive pleading and did not
thereafter specifically move to amend its responsive pleading to
include the affirmative defense of release, the available record
indicates that defendant discovered the release’s existence
during the course of discovery, and thereafter moved for summary
disposition based on the release. Plaintiffs never disputed
defendant’s assertion that it moved for summary disposition
based on the release shortly after discovering the release’s
existence, and plaintiffs did not before the district court
challenge the timeliness of defendant’s claim of release.
Plaintiffs neither now nor before the district court set forth
any allegation that defendant’s delayed assertion of the
release defense unfairly surprised them or otherwise prejudiced
them. Because (1) it appears that defendant moved for summary
disposition based on the release within a reasonable time of
discovering the release and (2) no indication exists that
plaintiffs suffered any unfair prejudice, Romska, supra
at 522, we conclude that defendant’s failure to assert the
release in its first responsive pleading did not prevent it from
subsequently raising the issue. See Moorhouse v Ambassador Ins
Co, Inc, 147 Mich App 412, 419; 383 NW2d 219 (1985)
("Just as affirmative defenses may be added by amendment
without waiving them, it makes sense to allow them to be raised
when they become legally available.").

With respect to the legal effect of the release
agreement plaintiffs executed, the Supreme Court directed that
this panel revisit this issue in light of Romska, supra.
In Romska, the plaintiff was injured in an accident with
another vehicle, in which the defendant rode as a passenger. The
plaintiff entered a settlement agreement with the insurer of the
vehicle that struck him, pursuant to which he released his claims
against the other vehicle’s driver and owner "and all
other parties, firms, or corporations who are or might be liable,
from all claims of any kind . . . resulting or to result . . .
from an accident which occurred on or about May 16, 1994."
The plaintiff then sued the defendant, a nonparty to the release
agreement, who sought summary disposition based on the release
plaintiff signed. Id. at 513-514 (emphasis omitted). This
Court affirmed the trial court’s grant of summary
disposition to defendant, explaining that "[b]ecause
defendant clearly fits within the class of ‘all other
parties, firms or corporations who are or might be liable,’
we see no need to look beyond the plain, explicit, and
unambiguous language of the release in order to conclude that he
has been released from liability." Id. at 515.

In the instant case, the release Meridian
Mutual obtained from Estate Design stated in relevant part as
follows:

I/we do hereby release and forever discharge
Meridian Mutual Insurance Co. and any other person, firm or
corporation charged or chargeable with responsibility or
liability, their heirs, representatives and assigns, from any and
all claims, demands, damages, costs, expenses, loss of services,
actions and causes of action on account of all personal injury,
property damage, loss or damages of any kind already sustained or
that I/we may hereafter sustain in consequence of an accident
that occurred on or about the 11th day of May 1990 . .
. in transit between Texas & Michigan.

* * *

I/we hereby agree that, as a further
consideration and inducement for this compromise settlement, this
settlement shall apply to all unknown and unanticipated injuries
and damages resulting from said accident, casualty or event, as
well as to those now disclosed.

I/we understand that the parties hereby
released admit no liability of any sort by reason of said
accident and that said payment and settlement in compromise is
made to terminate further controversy respecting all claims for
damages that I/we have heretofore asserted or that I/we or my/our
personal representative might hereafter assert because of the
said accident. [Emphasis added.]

We conclude that, like the defendant in Romska,supra, Mason-Dixon falls within the broad and expansive
language of the instant release. Given the release’s clear
and unambiguous language,[2] we will not consider the affidavit of Estate
Design’s agent, which alleged his "intent and belief
that said Release would only release Meridian Mutual Insurance
Company and not Defendants or any other entity," in
determining the release’s scope. Id. at 516.

We note briefly the dissimilarity between the
instant case and the cases plaintiffs cite in support of their
contention that this Court may properly consider their affidavit
regarding the release’s intended scope. Unlike the instant
case, Rodriguez v Solar of Michigan, Inc, 191 Mich App
483, 496; 478 NW2d 914 (1991), involved a release containing
language that clearly and expressly held only a single individual
harmless from liability. Furthermore, while Harris v Lapeer
Public School System, 114 Mich App 107, 116; 318 NW2d 621
(1982), involved a release that was obtained through fraud or
misrepresentation, no record indication exists that
plaintiffs’ instant release was procured via fraud or
mistake.[3]

Reversed and remanded for entry of an order
granting defendant summary disposition under MCR 2.116(C)(7).[4]We do not retain jurisdiction.

/s/ Hilda R. Gage
/s/ Michael J. Kelly

HOEKSTRA, J. (concurring).

Because I am required by MCR 7.215(H) to follow
the flat-bar rule adopted by this court in Romska v Opper,
234 Mich App 512; 594 NW2d 853 (1999), I concur with the result
of the majority opinion. For the reasons stated in my concurrence
in our original decision in this case and my dissent in Romska,
I remain convinced that the intent rule is the better reasoned
rule and is more consistent with the case law and statutes of
Michigan.

[3]While the affidavit provided by
plaintiffs reveals Estate Design’s representative’s
alleged misapprehension regarding the scope of the release, the
representative’s intent to enter a narrower release does not
represent a sufficient, mutual mistake for which relief from the
release terms may be granted. See Restatement Contracts, 2d, §
152.

[4]To the extent that it appears
defendant sought summary disposition pursuant to MCR 2.116
subsections other than (C)(7), we note that where the record
permits review under the correct subpart, the trial court’s
ruling on a motion for summary disposition under a different
subpart does not preclude appellate review according to the
correct subpart. Michigan Basic Property Ins Ass’n v
Detroit Edison Co, 240 Mich App 524, 529; ___ NW2d ___
(2000); see also Blair v Checker Cab Co, 219 Mich App 667,
671; 558 NW2d 439 (1996) ("[W]here a party brings a summary
disposition motion under the wrong subrule, the trial court may
proceed under the appropriate subrule as long as neither party is
misled."). We further note that while defendant’s
motion for summary disposition requested dismissal of only Estate
Design’s claims based on the release, our finding that the
release precludes Estate Design’s claims arising from
transportation of the printing press also prevents any claims by
Meridian Mutual, Estate Design’s subrogee. Allstate Ins
Co v Snarski, 174 Mich App 148, 154-155; 435 NW2d 408 (1988)
("It is well established that a subrogee . . . acquires no
greater rights than those possessed by his subrogor.").